EZ Loan Look Up, Inc. Advertising Program Terms
ON-LINE APPLICATION FOR ELECTRONIC ADVERTISING - TERMS AND CONDITIONS
Last Updated June 2008
PLEASE READ THE TERMS AND CONDITIONS BELOW. BY CLICKING ON THE "I ACCEPT" BUTTON, YOU AGREE THAT THEY WILL GOVERN THE PARTIES' OBLIGATIONS REGARDING THE ADVERTISING AND OTHER ITEMS DESCRIBED IN YOUR ONLINE ORDER. YOU MAY PRINT AND KEEP A COPY OF THESE TERMS AND CONDITIONS. YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS DOES NOT OBLIGATE EZ LOAN LOOK UP, INC.. ("PUBLISHER") TO PUBLISH ANY ADVERTISING. PUBLISHER MAY REJECT YOUR APPLICATION, IN WHOLE OR IN PART, FOR ANY REASON.
PUBLISHER MAY CHANGE THESE TERMS AND CONDITIONS AT ANY TIME BY POSTING SUCH CHANGED TERMS AND CONDITIONS ON THIS WEBSITE, AND ALL SUCH CHANGES WILL BE EFFECTIVE AS OF THE BEGINNING OF THE FIRST MONTH OF MY ADVERTISING FOLLOWING THE DATE THE CHANGED TERMS AND CONDITIONS ARE POSTED. THE CURRENT VERSION OF THESE TERMS AND CONDITIONS MAY BE VIEWED AT http://www.ezloanlookup.com/terms-conditions.html
SECTION 1 - APPLICATION FOR ADVERTISING
By my submission of my online order and acceptance of these terms and conditions by clicking "I accept", I am requesting Publisher to publish advertising ("Electronic Advertising") in services published on various electronic media, including, without limitation, Publisher's EzLoanLookUp.com® service ("Electronic Directory"). Electronic Advertising also includes websites and other electronic advertising items requested on the Order Summary Page of this Application whether or not linked to the Electronic Directory. The "Date of the Application" is the date I clicked to accept these terms and conditions and submitted my order in connection with these terms and conditions (or, if these events occurred on two different dates, the later of the two dates). The "Application" consists of my order together with these terms and conditions. "I" or "Advertiser" means the person who is the subject of the advertising described in this Application. I may be an individual, corporation or other entity or organization.
SECTION 2 - PUBLISHER NOT BOUND TO PUBLISH
I understand that this Application is not an agreement by Publisher to publish my advertising and Publisher may choose not to publish my advertising. I understand that Publisher will have no obligation under this Application until and unless Publisher publishes my advertising (but only as to the advertising published, and in no event will Publisher have any obligation under this Application as to any advertising listed on this Application but not published). If Publisher does not publish my advertising, it will refund any money I previously paid for the advertising not published and will have no further obligation to me, and I will have no further obligation to Publisher with respect to the advertising not published.
SECTION 3 - PAYMENT FOR ADVERTISING
(a) Amount of Payment If Publisher publishes my advertising, I promise to pay to Publisher the rates posted on the "Advertise With Us" section describing the advertising selected for each month of my advertising until I cancel my advertising, or Publisher cancels my advertising, in accordance with Section 29 (Cancellation/Suspension). Monthly rates will be rounded to the nearest month. I will also pay any taxes due on my advertising. Advertiser acknowledges and agrees that the rates posted on the "Advertise With Us/Pricing" section describing the advertising selected do not include any facilities or services for access or interconnection to the Internet, or any consulting or technical services or changes to Advertising Copy other than those changes, if any, included in the standard pricing for such items. Advertiser further agrees to prepay pay for any additional services provided by Publisher according to Publisher's then current undiscounted rates and charges for such additional services. Notwithstanding the foregoing, I acknowledge and agree that Publisher may increase the rates for my advertising at any time by giving me 30 days advance written notice. This does not apply to months that I have prepaid for.
(b) Billing Unless Publisher agrees to or requires other billing arrangements, advertising charges will be automatically billed to the credit card I designated during the application process. Publisher, in its sole discretion, may agree to or require other billing arrangements (including, without limitation, advance payment, or non-credit card billing directly to Publisher, by an affiliate of Publisher, or by an unrelated third party.) Publisher requires me to prepay for terms of service before it is published.
(c) Publisher may require me to pay any collection costs and attorney's fees incurred by Publisher. Publisher also may remove my advertising from any Electronic Directory, however I will remain liable for charges for such advertising for the term of this Application.
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(e) Restrictive Covenants and Conditional Endorsements; Application of Payments The acceptance of any payment or instrument marked with any restrictive covenant or other limited or conditional endorsement will not be deemed a waiver of any of Publisher's rights under this Application. Publisher has the right to apply any payment received from Advertiser to and among all amounts owed by Advertiser, in Publisher's sole discretion.
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(g) Payment by Credit Card If I am paying with a credit card, if there are any annual, monthly or similar periodic charges for any advertising, the charges for such advertising will be billed automatically to my credit card at the start of each such period. All charges for advertising to be paid by credit card will be billed to the credit card designated during the application process for such advertising (or any replacement card designated by Advertiser), provided that such credit card is acceptable to Publisher. If I wish to designate a different credit card, or if there is a change in the availability or expiration date of the designated credit card, I must immediately notify Publisher as provided in Section 24 or designate a different credit card through my online account at EzLoanLookUp.com. If I believe someone has accessed Publisher's "Log In" section of Publisher's EzLoanLookUp.com web site using my user name and password (or otherwise accessed my online account at EzLoanLookUp.com), I must call Publisher at the telephone number posted in the "Contact Us" section of Publisher's EzLoanLookUp.com web site. All advertising payments are non-refundable except as expressly set forth herein. All advertising payments are non-refundable except as expressly set forth in this Application. Advertiser, and not Publisher, is responsible for paying any amounts billed to Advertiser's credit card by a third party that were not authorized by Advertiser. I represent and warrant that the credit card information that I submit to Publisher is, and during the term of this Application will remain, valid and that Advertiser is authorized to use such credit card (provided that I may authorize Publisher to impose such charges against a valid replacement credit card of mine, as to which card this same representation and warranty will apply). In the event that credit card charges are denied for any reason, I agree to pay such charges, together with interest and other applicable charges as provided in this Application, directly to Publisher, and Publisher may suspend the advertising and/or terminate this Application (in whole or in part).
(h) Co-op Funding I acknowledge that I am responsible for obtaining any available co-op funding that may be available to me and that I am responsible for the entire amount billed to me even if co-op funding is not received by Publisher.
SECTION 4 - ADVERTISING CONTENT
(a) Advertising Copy "Advertising Copy" means all Advertiser Copy (hereinafter defined) and other content that I provide to Publisher or that is otherwise included in my advertising or on-line business profile, including without limitation content that I authorize or request Publisher to include, or that is submitted on-line by me or any person(s) using my password(s) ("Password User(s)"). I will furnish all Advertising Copy to Publisher. Publisher has the right to approve the content, form, size, wording, typography and illustrations of the Advertising Copy. Publisher may change each name and street address or any other content in the Advertising Copy to conform to Publisher's standards, practices and policies or to the policies of any third parties upon whose site or network the Advertising Copy may be published by or through Publisher. It is my responsibility to review any Advertising Copy.
(b) Right to Use Advertiser Copy I represent and warrant that I have the absolute and unrestricted right and authority to use, publish, reproduce, distribute, display publicly, promote, perform, resize, rearrange, modify and create derivative works from any and all content, including all text, graphics, illustrations, symbols, logos, names, addresses, trade names, trademarks, service marks, pictures, photographs or other likenesses of persons (including minor persons), and endorsements provided by me or by a third party on my behalf ("Advertiser Copy") in any medium and in (or in connection with) any listing or advertisement published under this Application in the way it is used in any such listing or advertisement (or in connection with such listing or advertisement) without the consent or authorization of any other person or entity. I also represent and warrant that (i) I have the right to provide the Advertiser Copy to Publisher and the right and authority to grant Publisher the additional rights afforded by these terms and conditions (including without limitation Sections 4(f), 17 and 38 below) without the consent or authorization of any other person or entity; and (ii) the exercise of any such rights, licenses, or authorizations by Publisher or its sub-licensees will not infringe any copyright or other intellectual property right or right of publicity or privacy rights of any other person or entity. If my right and authority to use any Advertiser Copy, or any portion of any Advertiser Copy, changes or any proceedings contesting that right and authority are initiated, I will notify Publisher promptly in writing. I agree that I am solely responsible for the enforcement and protection of any of my intellectual property included in (or in connection with) my advertising.
(c) Advertiser's Representations I represent and warrant that (i) the statements contained in the Advertising Copy are truthful and not misleading; (ii) I am authorized to provide the services and products advertised; (iii) the Advertising Copy complies with all applicable laws and regulations; (iv) I have all of the applicable licenses and permits required to provide the goods and services I am advertising (or offering or selling in connection with my Electronic Advertising) in all of the geographic areas covered by the Electronic Directory and to advertise under all of the categories under which I am seeking to place my advertising; and (v) I will notify Publisher immediately if I become aware of any facts or circumstances indicating that any of my representations in this Section are, or become, untrue.
(d) Publisher's Rights in Advertising Copy If Publisher creates or supplies any Advertising Copy for me, I agree that: (i) I am responsible for the content, but that Publisher retains all rights in and/or ownership of any such Advertising Copy and I will not have any right therein except as expressly set forth in this Application; (ii) Publisher reserves the right to supply such Advertising Copy to other advertisers; (iii) I have no right to use advertising developed with content created or supplied by Publisher except in connection with this Application; and (iv) I will not have the right to allow others to use such advertising or any such content. I waive any and all rights of attribution and integrity and other statutory and common law rights of every kind relating to any Advertising Copy.
(e) Appearance I acknowledge that my published advertising may be of a lower quality or otherwise differ from the original Advertiser Copy or from copy layout sheets supplied by Publisher in clarity, color, contrast, focus, size and other features. Publisher has advised me against the use of Advertiser Copy that is unclear, low contrast or otherwise substandard, and I release Publisher from any liability for advertising of inferior quality produced from substandard Advertiser Copy. I acknowledge that the size, color, font, highlighting and arrangement of enhanced listing items in Electronic Advertising may be adjusted from that appearing in any sales collateral or copy sheet and from web page to web page, and that the associated listing's enhancements may be omitted (e.g., the listing may appear as a basic listing) as a result of a distribution affiliate's or user's applicable hardware, software or system limitations or browser settings or the manner in which the listing is transferred to any third party prior to its display to the user.
(f) Multi-Media Distribution I grant Publisher and its Affiliates the absolute, non-exclusive, irrevocable, royalty-free, worldwide, unrestricted right, license and authority to: (i) use, store, reproduce, publish, publicly perform, display, distribute, manipulate, modify, and prepare derivative works based upon any Advertising Copy, and any changes thereto that I or my Password Users or other agents provide to Publisher, or that Publisher or its agents may otherwise develop or use under this Application, in whole or in part, in such manner, format, and media (including without limitation, microfiche, CD-ROM, print and Internet-based information services owned or operated by Publisher, or which are otherwise powered by any such information service and electronic web sites and applications owned and operated by third parties, and during the term of this Application and for as long as any such materials remain in circulation) as Publisher may deem appropriate and for such purposes as it may see fit (including, without limitation, to provide optimization services in an effort to improve the value of my Electronic Advertising), subject to applicable law, which right, license and authority will be perpetual as to any business name, address, phone number and other basic listing information included in any Advertising Copy; and (ii) grant third parties the right, sublicense and authority to exercise all or any portion of the rights afforded Publisher under this Section 4 and under Sections 17 and 38, subject to such terms and conditions as Publisher may deem appropriate, and to grant such third parties the right and authority to grant other third parties the right, sublicense and authority to exercise all or any portion of the rights afforded Publisher under this Section 4 and in Sections 17 and 38, subject to such terms and conditions as such third party sublicensor and/or Publisher may deem appropriate. Publisher, its sublicensees, and their sublicensees may use any means of communications or transmission in their exercise of any of the rights and licenses granted above, without limitation. Advertiser acknowledges and agrees that Publisher and its Third Party Distribution Contractors (defined in Section 6 below) may utilize search algorithms (and/or other methods) to map end user search terms to categories and keywords selected by me, and that the search terms in response to which my Electronic Advertising may appear on the Electronic Directory or Additional Applications (defined in Section 26 below) (or, as to Bid Program Advertising, the Program Site(s)), or any portion thereof, may differ from the specific categories and keywords I have selected.
(g) Advertising Including Information on Pricing and Promotions I agree that, in addition to otherwise complying with all policies, specifications and standards issued by Publisher with respect to pricing and/or discount percentage advertising, I will honor the prices or discount percentages quoted, and any other promise, offer or statement made, in my Electronic Advertising (and on-line changes thereto) until it is removed from the Electronic Directory or until a published expiration date, whichever occurs first.
SECTION 5 - LOCATION OF ADVERTISEMENTS AND CATEGORIES
I understand that:
- Publisher will determine all categories that will appear in the Electronic Directory and has the right to approve or reject my selection of a category.
- Publisher does not guarantee that my advertising, or the advertising of any other advertiser, will appear under a specific category or position within a category in any Electronic Directory.
- Publisher does not guarantee that my advertising, or the advertising of any other advertiser, will appear at any specific place, position, rank or location on the Electronic Directory page(s) or directory listings for the world wide web ("www"), or at a specific url address on the Internet, or at a specific location within any other Electronic Directory, or that the url or keywords of any advertising will be placed with any particular search engine.
- Categories are included for the user's convenience, and Publisher does not warrant or guarantee that each advertiser under a given category provides the service or product described in that category or conforms to all applicable legal or regulatory requirements for providing that product or service.
- Publisher's policies, practices, and procedures regarding the placement, position, or location of advertisements and categories are solely for Publisher's internal business purposes, and Publisher will not be liable to me for any deviation from such policies, practices, or procedures.
SECTION 6 - LIMITATION OF LIABILITY
I understand that, except for my obligations to pay expenses and damages under Section 10: (1) the total amount of damages that Publisher may recover from me related to this Application will not exceed the sum of the charges owed for the items of advertising at issue, plus late charges and other costs payable under Section 3; and (2) Publisher agrees to waive any claim for damages to the extent such damages exceed this amount. I agree: (1) that the total amount of damages related to this Application that I may recover from Publisher, any Affiliate (defined below), any agent of Publisher, any party that provides fulfillment or other services related to this Application, and any Third Party Distribution Contractors (defined below) (together, the "Indemnified Parties") will not exceed the lesser of (a) the amount (as determined by Publisher) by which the value of the item of advertising at issue was decreased or (b) the sum of the charges I have paid for the items of advertising at issue (the lesser amount being referred to as the "Liability Cap"); and (2) to waive any claim for damages to the extent such damages exceed the Liability Cap. Publisher may provide free advertising in lieu of a credit to Advertiser's account. Publisher will have no liability for any error, omission, or default with regard to items for which no charge is assessed. The limitation of liability in this Section 6 will apply to the full extent permitted by law. Further, it will apply to any claim that I may have against any of the Indemnified Parties. Because some jurisdictions do not allow the exclusion or limitation of liability for certain damages, the limitation of liability may not apply. EzLoanLookUp "Third Party Distribution Contractors" means third parties for whom Publisher provides a co-branded or private-label directory or through whom Publisher otherwise provides its directory services. The claims covered by this limitation of liability include, but are not limited to: any claims based on contract violations, torts (such as negligence or strict liability) or any other legal or equitable ground; any claims for lost business revenues, profits or the cost of other forms of advertising; any claims based on any error or omission in my advertising; and any claims based on inaccessibility, interruptions, delays, defects, deletion of files or email, viruses or any failure of performance of Publisher. In no event will any Indemnified Party be required to correct, or to give any special notice regarding, any error or omission in any Electronic Directory. If I do not desire to be bound by the Liability Cap, I understand that I can increase the Liability Cap with regard to paid advertising by agreeing to pay additional charges, which will be determined by mutual agreement between me and Publisher. If Publisher and I agree to, and I pay, these charges, the Liability Cap described in this Section 6 will not apply, but I will be bound by the higher Liability Cap that I agree to with Publisher.
SECTION 7 - WHEN I MUST BRING ANY CLAIMS
Advertiser and Publisher agree that they have a mutual interest in resolving any disputes promptly. Therefore, if I believe I have a claim against any of the Indemnified Parties related to any Electronic Directory, I must make my claim within one year of the Date of the Application for the advertisement which is the subject of my claim. I agree that this provision applies to any claims I may have against any of the Indemnified Parties related to my advertising, including any claim based on any error or omission in any advertisement. All claims against any of the Indemnified Parties must be in writing and must be mailed to Publisher at Ez Loan Look Up, Inc., Attention: Claims, 4435 North Harlem Avenue, Norridge, IL 60706 or faxed to Publisher at (888) 329-2009 before expiration of the periods referenced above.
SECTION 8 - LITIGATION; ARBITRATION
In any legal proceeding relating to this Application, including an action in court and an arbitration, Publisher and I agree to waive any right we may have to participate in any class, group, or representative actions and further agree to waive any right we may have to a trial by jury. Publisher may bring an action in court to collect amounts due under Section 3 (Payment for Advertising), and I may bring an action in court to recover amounts I have paid under this Application. All other disputes between myself and Publisher and/or any of Publisher's officers, directors, employees or Affiliates that cannot be settled by amicable agreement concerning or arising from or in connection with (i) this Application, (ii) the construction, performance or breach of these terms and conditions and any modifications thereof, (iii) any transactions between myself and Publisher, including but not limited to any accounts I maintain with Publisher, any advertising that Publisher publishes or does not publish for me, and any statements that I or Publisher make to one another in connection with our transactions, or (iv) any issues as to whether a dispute is to be arbitrated between us, whether such disputes arose prior to, on, or subsequent to the Date of the Application, will be referred by the aggrieved party to arbitration under the rules of the American Arbitration Association, and such party will give written notice of arbitration to the other. Notice to Publisher must be mailed to Ez Loan Look Up, Inc., Att: Notices, 4435 North Harlem Avenue, Norridge, IL 60706 or faxed to (888) 329-2009 before expiration of the periods referenced above. I understand that I may obtain arbitration rules and fee information from the American Arbitration Association (www.adr.org). Publisher and I acknowledge that Advertiser's use of Publisher's services evidences a transaction in interstate commerce and that the United States Arbitration Act and federal arbitration law will govern the interpretation, enforcement, and proceedings pursuant to this Section 8. Publisher and I also agree that the arbitrator may not award multiple or punitive damages, except as may be required by law. If the law prohibits a claim from being arbitrated, Publisher and Advertiser agree to arbitrate any related claims before proceeding in court. If our agreement as set forth in this Section 8, to waive any rights we may have to participate in a class, group or representative action is deemed unenforceable, then Publisher and I agree that any claim seeking relief on a class, group, or representative basis will be filed and tried in a court of competent jurisdiction and will not be subject to arbitration. If it becomes necessary for one party to commence any arbitration, litigation, or collection action against the other, the prevailing party in such action will be entitled to recover all costs, including reasonable attorneys' fees, expert witness fees and in-house counsel costs associated with the action. I must commence any arbitration or litigation against any of the Indemnified Parties within two years after the last day of the month in which the advertising to which my claim relates was published.
SECTION 9 - DISCONNECTION OF ADVERTISER'S PHONE NUMBER
The change or disconnection of a phone number or Internet address or the sale of the assets or business described in my advertising does not release me from any of my obligations under this Application. However, if prior to any failure on my part (i) to pay any amount when due or (ii) to comply with any other obligation that exists or may arise under this Application, I provide proof to the satisfaction of Publisher that (1) no phone number, street address or Internet address identified, referred to or used in any way in connection with my advertising (and of all successors, assigns and parties affiliated with, or related to, me) continues to be used in connection with the business or its assets; (2) the business (and any successor, affiliated or related business) to which my advertising relates (or may relate) has ceased operation and has not and will not be reestablished during the term of this Application; and (3) neither I nor any successors, assigns or parties affiliated with, or related to, me will receive, directly or indirectly, any further benefit from the advertising, then I will no longer be obligated to Publisher for any monthly charge for which I would otherwise become obligated beginning with the month following the month in which Publisher accepts my proof as satisfactory.
SECTION 10 ADVERTISER WILL PAY PUBLISHER'S DAMAGES
To the full extent permitted by law, I will pay any expenses or damages incurred by any of the Indemnified Parties related to this Application, including all of its attorney's fees and expenses, which expenses or damages result from claims brought by other parties regarding (a) the publication of advertising as requested by this Application or in accordance with my Advertiser Copy (or changes to any Advertising Copy Advertiser or any Password User makes or requests) or the content on or the operation of any website(s) included in my advertising or to which my advertising links, (b) any breach of any of my obligations, representations, warranties or covenants under this Application, (c) any communications through any Electronic Advertising (or any service ancillary thereto), or any collection or use of information obtained from end users of any Electronic Advertising (or any service ancillary thereto), (d) any survey, contest, sweepstakes or other promotion, activity, event or interactive feature which is posted, displayed, promoted or otherwise referenced on, offered in connection with, or related to, any Electronic Advertising, (e) transactions initiated through any Electronic Advertising (including without limitation, any taxes (or tax rates) or shipping and handling charges applied thereto), (f) payment processing services provided by any third party, or (g) any agreement or arrangement between Advertiser and any third party (including without limitation any agreement(s) between Advertiser and a third party payment processing company). I will be obligated by this Section even after my Electronic Advertising has been cancelled or terminated.
SECTION 11 - NO APPROVAL OR ENDORSEMENT BY PUBLISHER
I understand that Publisher does not approve or endorse (a) any product or service described in my advertising or any other advertising it publishes; or (b) any user review of such products or services. I will not make any representation that Publisher does approve or endorse any product or service. I also understand that Publisher may publish advertising (including limited inventory advertising) of any other advertiser in any Electronic Directory at any time, including without limitation under any category or at any place, position, rank or location within any Electronic Directory.
SECTION 12 - PUBLISHER'S COPYRIGHT IN DIRECTORY
I agree that Publisher owns the copyright in each Electronic Directory and all copyrighted portions of each Electronic Directory.
SECTION 13 - SUCCESSORS; ASSIGNMENT
This Application will be binding on and inure to the benefit of me and my successors. Publisher may assign this Application. I may not assign any of my rights or delegate any of my duties under this Application without prior written consent of Publisher.
SECTION 14 - WAIVER OF RIGHTS
Except as otherwise set forth in this Application (including the provisions of Section 7), neither Advertiser nor Publisher will lose any of its rights under this Application even if it does not enforce a right or delays in enforcing a right.
SECTION 15 - DISCOUNTS AND PROMOTIONS
Publisher may create, revise or cancel a discount or promotional offering at any time. No discount offered regarding any Electronic Directory will obligate Publisher to offer any future discounts or promotional offers.
SECTION 16 - REVIEW OF PROOFS
Publisher may provide me with copy sheets and/or campaign worksheets (collectively, "Confirmation Sheets") for my review. I may correct inaccuracies in these Confirmation Sheets up to the deadline set by Publisher. Publisher may require that I sign one or more Confirmation Sheets to approve my advertising before publishing the advertising. However, Publisher may publish my advertising without approval of such Confirmation Sheets. Additional charges may apply to any changes I request to any Electronic Advertising other than those changes, if any, included in the standard pricing for such Electronic Advertising item.
SECTION 17 - LINKS
If my advertising contains links, I hereby: (a) grant to Publisher and its sublicensees a royalty-free unrestricted right and license to establish such links and to link users of my advertising to the website(s) designated in my advertising and to cause the link(s) to open new browser window(s) and publish the website(s) designated by such link(s) within such window within my advertising; and (b) represent and warrant that (i) I have the right and authority to grant the foregoing right and license and that the foregoing does not infringe on any copyright or any other right of any other person, and (ii) all copy and content of all websites to which my advertising links complies in all respects with all applicable laws and regulations.
SECTION 18 - PUBLISHER MAY ACT AS SALES AGENT
I understand that Publisher may be acting as a sales agent for another publisher. If Publisher is acting as a sales agent for another publisher, I agree that my contract is with the true publ
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